Monday, September 30, 2013

Brazil is a California consumer who “cares about the
nutritional content of food and seeks to maintain a healthy diet.” He alleged
that he bought 8 misbranded Dole products, and identified 30 substantially
similar products. The allegedly false
claims included “natural,” e.g., one product used “All Natural Fruit” even
though it contained ascorbic acid, citric acid, malic acid and added flavors,
which weren’t natural.He also
challenged “fresh,” which FDA regulations state means raw and not frozen or
subjected to any form of thermal processing or any other form of preservation.
The regulations also require that foods that have undergone particular forms of
processing be labeled as “canned” or “pasteurized” if they are packaged and
sold in a manner that “suggest[s] or impl[ies] that the article is other than a
canned food,” as when foods are packaged in glass or plastic instead of metal
cans. He argued that Dole products
labeled “fresh taste” had been subject to various forms of thermal and chemical
processing, and that products packaged in plastic or glass didn’t disclose that
they were “canned,” in spite of the fact that they underwent processing that
the FDA considers equivalent to canning. (Shades of a recent
Lanham Act case!)

The court found that Brazil could bring claims based on
products he didn’t buy that were substantially similar, but not claims based on
statements he didn’t view.As to the
former, “where, as here, a plaintiff claims that he was misled by the improper
use of the term ‘all natural’ on Dole Mixed Fruit in Cherry Gel, the injury he
suffers as a result of that misrepresentation is not meaningfully
distinguishable from the injury suffered by an individual who is misled by the
use of the term ‘all natural’ on Dole Mixed Fruit in Black Cherry or Peach Gel.”All the other products he identified were
just different flavors or varieties of the products he purchased and used
identical representations to those on the products he bought; that sufficed.

But the court rejected Brazil’s argument that he didn’t need
to view website statements in order to have standing to challenge them.He contended that statements made on websites
whose addresses appear on a product label are incorporated into the label as a
matter of law, and that misstatements on the website therefore made various
blueberry products misbranded and illegal to sell as a matter of law.His claimed injury was therefore that he
bought “illegal” products.The court
doubted that this was enough to establish causation for Article III
purposes.“While Defendants’ website
statements may violate federal law by virtue of the FDA’s position that website
statements may be incorporated into a product’s labeling by reference, it is
far from apparent how this regulatory violation could have caused Brazil to
purchase Defendants’ products when he neither saw the allegedly offending
statements nor relied on them in deciding to purchase Defendants’ products.”
Anyway, even if that theory passed Article III, it wasn’t enough under
California’s consumer protection laws, which do require reliance when the
underlying misconduct alleged is fraudulent.And his theory was inconsistent with Proposition 64’s enhanced standing
requirements for UCL claims.

Many of Brazil’s claims did survive Rule 9(b) by identifying
the particular representations and regulations at issue, specifying why Dole’s
representations allegedly violated the regulations, and stating why a
reasonable consumer would be misled by the violations.Brazil didn’t need to spell out the regulatory
violations associated with each unpurchased product “with the same degree of
exhaustive detail,” because that would be cumbersome and redundant.

Some of the claims were preempted, but others weren’t.The fact that Dole allegedly sold misbranded
products without disclosing the misbranding wasn’t deceptive/actionable in
itself, since no regulation required such disclosure (despite Brazil’s attempt
to argue that a general disclosure provision in the regulations, mandating
disclosure of material facts, did so require).There was no authority “to support the counterintuitive proposition that
a product’s label must disclose the fact of its own illegality.”

The court also declined to dismiss nationwide class claims
on a motion to dismiss, without more fact-specific analysis.

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